EU Fights Back as Rogues Test Legal Order, Defy LGBTQ Rights

The European Union’s rule-of-law conflict with eastern member states escalated as the bloc’s top court struck down a major Polish judicial reform and legal action was started against Hungary and Poland for violating the rights of LGBTQ people.

The moves added to concern that the EU may soon attempt to slash the billions of euros of financing that the two countries receive. Their currencies were among the world’s worst performers on Thursday.

The developments prompted harsh rhetoric from both sides of the divide and raised questions about the EU’s future. Poland’s opposition stepped up warnings the nation is on course to crash out of the bloc, while a Hungarian minister said linking EU funding with LGBTQ rights “will destroy” the union.

The latest tensions began Wednesday, when Poland’s Constitutional Tribunal openly defied a crucial pillar of the 27-nation bloc’s legal system by ruling that interim orders by EU courts on judicial matters weren’t enforceable.

That raised fears about Poland’s ability to abide by EU rules and remain part of the bloc’s legal system, a key factor for investors in its $594 billion economy. Last month, EU Justice Commissioner Didier Reynders warned that attempts to challenge the primacy of EU rules could tear the bloc apart.

The EU could start punishing rule-of-law offenders this year by freezing funds from its 1.8 trillion-euro ($2.2 trillion) pandemic stimulus package before they’ve been disbursed. The European Commission still hasn’t approved national recovery plans -- which provide access to the relief money -- from several countries, including Hungary and Poland.

“It must be clear that proper implementation of the national recovery plans requires that member states have in place management, control and judicial supervisory systems that can guarantee the proper use of EU funds and the protection of the financial interests of the EU,” Eric Mamer, the commission’s chief spokesman, told reporters in Brussels.

‘Parallel’ System

The EU Court of Justice ruled Thursday that Poland’s disciplinary regime for judges isn’t compatible with EU law. The mechanism “could be used in order to exert political control over judicial decisions or to exert pressure on judges with a view to influencing their decisions,” according to the verdict.

Prime Minister Mateusz Morawiecki said the ruling amounted to “discrimination” while Justice Minister Zbigniew Ziobro called it part of the EU’s “colonial” approach to Poland. A spokesman for the disciplinary chamber said the body will, for now, “continue working as before.”

“By refusing to implement the rulings of the European Court of Justice, Poland is now opening up the possibility of establishing a parallel legal system where EU law no longer applies in full,” said Economist Intelligence Unit analyst Alessandro Cugnasca.

BNP Paribas Polska SA economist Wojciech Stepien asked: “How can a government base most of its economic plans on the use of EU funds while questioning the legal order on which the EU is based?”

Equality Matters

The commission said it will use all instruments at its disposal to defend the rights of LGBTQ people. The comments follow new legislation in Hungary that bans making content deemed to “promote homosexuality” available to minors and anti-gay declarations by Polish towns and regions.

The EU has for years been battling against Poland and Hungary over issues from the rule of law to climate policy that have, so far, led to little by way of concrete punishment.

Poland’s clashes highlight the extent of the nationalist government’s six-year drift away from the European mainstream and have rekindled a debate about the nation’s long-term political trajectory. Legal experts and the opposition say the country is on track to leave the EU, even as the government has branded the idea as “political fiction.”

“We’re on the road to a legal Polexit,” said Poland’s human-rights ombudsman, Adam Bodnar. Five Constitutional Tribunal judges may undo the results of Poland’s 2003 referendum to join the EU, when 78% backed membership, including jurisdiction from the EU’s top court, he said.

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